NILAMBAR MISHRA vs A K DUTTA

-THIS Revision Petition is preferred by the Original Complainant, Nilambar Mishra and Anr. being aggrieved by the judgment and order dated 29. 4. 2002 in First Appeal No. 529 of 1996 passed by the State Commission, Cuttack, Orissa.

BRIEF facts of the case are: the Revision Petitioner purchased a Mitsubishi Shakti Power Tiller for Rs. 42,582. 80 Paise after availing subsidy of Rs. 10,000 and obtaining bank loan on 28. 11. 1990. The power tiller is manufactured by the opposite party Nos. 3 and 4, who are representative and the Area Sales Officer of V. S. T. Tillers and Tractors Ltd. , Bangalore respectively. Opposite party Nos. 1, 2 and 5 are Regional Manager, Additional Regional Manager and Managing Director of Orissa Agro Industries Corporation, Bhubaneswar, opposite party No. 6 is Branch Manager, State Bank of India. The State Commission, Orissa by order dated 9. 5. 2000 deleted opposite party No. 6. The power tiller was purchased by taking loan from State Bank of India, Simulia with 12% compound interest. Agro Industries Corporation, Bhadrak (OAIC for short) were the agents of manufacturers of V. S. T. tillers and they gave demonstration of the power tiller at the Complainant''s village.

The power tiller started giving trouble within 10 days after purchase on 9. 12. 1990 and the mechanic of the opposite party No. 2 attended on 12. 12. 1990. Thereafter, the machine showed over heating and the petitioner could not use it continuously but had to use for short period only. The complainant was advised to pour water on the radiator at half hour intervals and intermittently various problems were arising in the tiller. On 13. 5. 1991 the gear box gave trouble and on 15. 5. 1991 the engine went out of order. On 17. 5. 1991 and again on 23. 5. 1991 the technicians of the opposite parties found that idle pinion and idle bearing were defective. When these were fitted in the machine it gave strange sounds and opposite parties could not rectify the defect.

SINCE then, the complainant is unable to use the machine as it is lying in an unworkable condition. The petitioner lodged a complaint with the opposite parties and the Government Authorities, i. e. OAIC. The mechanic of the Agriculture Engineering Section of the Orissa State Government at Markona, Mr. D. N. Kar, was sent and he detected that the crankshaft had been wrongly fitted by the opposite parties'' mechanic. It is further submitted that due to manufacturing defect of the power tiller machine he was unable to pay back the loan to the bank. Finally, a compromise proposal was arrived at between the State Bank and himself on 8. 3. 2000 and Rs. 1,15,000 was paid by the complainant to the bank to clear all the arrears arising out of the purchase of the power tiller machine. This complaint had chequered history of moving from District Forum to State Commission twice. Initially the District Forum by order dated 25. 4. 1992 directed the opposite party No. 1 to repair the power tiller machine within one month or else the new tiller should be replaced or the price of the tiller is to be refunded with interest @12% p. a. from the date of default on the part of opposite party Nos. 1 to 5. Thereafter, on a remand back from the State Commission, the District Forum by order dated 1. 6. 1996 held that the defects were rectified and all the defective parts were replaced and dismissed the complaint on that basis.

THE appeal filed by the petitioners before the State Commission was allowed by order dated 11. 7. 2002 set aside the order of the District Forum and held manufacturer as well as OAIC both jointly and severally liable to pay Rs. 25,000 to the complainant towards the repair, harassment and mental agony besides cost of Rs. 5,000 for litigation. The said order was to be complied with by 15th September, 2002 failing which interest @ 10% would be attracted till the date of payment. The petitioners aggrieved by the order of the State Commission raised following issues: (i) Firstly, that the power tiller machine supplied by the opposite parties suffered from manufacturing defect and hence State Commission ought to have ordered refund of the price of the machine or its replacement, as provided under Section 14 (b) of the Consumer Protection Act. (ii) Secondly, that award of compensation was only Rs. 25,000 whereas the petitioners had to pay Rs. 1,15,000 for the machine towards the price and towards the bank loan and interest. (iii) Thirdly, that it is not open to the opposite parties to plead forn cross-examination of all the mechanics and not decide on the pleadings and affidavits filed in the District Forum.

The State Commission has recorded that on 15. 12. 1990 the mechanics of OAIC, namely, B. M. Mishra and I. P. Mohanty went to the house of the complainant and removed the defect and also that the Complainant made a complaint with regard to re-occurrence of certain defects later. On 23. 5. 1991, the mechanic of the OAIC did some repairs by fitting certain new parts. On 27. 5. 1991 D. N. Kar, the mechanic of Agricultural Engineering Department at Simulia detected that the crankshaft was wrongly fitted for which the machine was giving trouble. A letter dated 1. 8. 1991 by the Executive Engineer (Agriculture), Central Zone, addressed to the Regional Manager, OAIC wherein the following issues were mentioned:

FIRSTLY, that the defect was pointed out within the warranty period and opposite parties 1 and 2 had agreed to refer this to the manufacturer.

SECONDLY, that the damage of the main bearing spoilt the power tiller which should not have happened within a small span of 500 hours of working and OAIC being the authorised dealer, did not take up the matter with the manufacturer. Thirdly, that the mechanics sent by the OAIC were not well trained in repairing Mitsubishi Power Tiller and that the mechanics wrongly repaired the tiller by fitting the connecting rod which damaged the crankshaft.

Fourthly, that there was also complaint by other farmers regarding the performance of this particular model power tiller.

ONE Mr. Brajamohan Mishra, Mechanic Grade - II under the OAIC tested the engine while the same was being used in the field and in its report dated 12. 12. 1990 he has clearly mentioned following defects: (i) that as the engine was not taking load and speed of the accelerator after 15 to 30 minutes of operation was being slowed down; (ii) that second gear was not effective and that after running for 15 minutes on third gear the engine stopped and lastly, that the tiller could not even work efficiently for 2 to 3 hours.

The State Commission on the basis of above findings came to the conclusion and held that "all these facts amply prove that the engine was defective and such defects were certainly due to manufacturing defect".

AFTER going through all the records of the various mechanics who attended the power tiller, the State Commission held that it is a manufacturing defect but ordered the opposite parties to pay only Rs. 25,000. The petitioners cited Abhaya Kumar Panda v. M/s. Bajaj Auto Limited, I (1992) CPJ 88 (NC), whereby replacement of the vehicle was ordered by this Commission along with usual warranty from the date of delivery and also the interest that he had to pay to the Bank for the loan raised for the purchase of the vehicle from the date of delivery of the defective vehicle to the date of its replacement and also loss of earnings at the rate or Rs. 2,000 p. m. Learned Counsel for the petitioner, who is Amicus Curiae, urged that the Revision Petition be allowed in view of the above judgment with directions to either replace the power tiller with compensation or refund the amount paid by the petitioners along with interest and compensation for the mental agony and financial loss he suffered.

AS against this, respondents/opposite parties contended that firstly, the tiller purchased by the petitioners is for commercial purpose and is not entitled for any relief under Consumer Protection Act. Secondly, no attempt was made by the Petitioners to cross-examine either Mr. Mishra or Mr. Mohanty on the contents of their respective affidavits before the District Forum. Thirdly, there is no affidavit of Mr. D. N. Kar regarding the alleged defective fitment of the crankshaft and its findings should be disregarded. Lastly, the warranty on the power tiller had already expired on 21st May, 1991 and hence OAIC was fully justified in asking the petitioner to make payment for any repairs to the tiller.

WE have heard both the parties and perused the record carefully. In our view, it is clear that the petitioner being a poor agricultural farmer suffered financially settling the bank loan. It is also clear that various mechanics have checked the defective machines time and again trying to rectify the same which also establishes the fact that the Power Tiller is not working well, working for couple of hours and is unable to take the load does not inspire confidence that it does not have defects. It is clearly established that the power tiller had manufacturing defect within warranty period. Further, the letter dated 1. 8. 1991 by the Executive Engineer (Agriculture) and Bijendra Mishra of OAIC tested and gave report and both have elaborated the manufacturing defects in the reports. Even if we accept that Mr. Kar has not filed affidavit and that this version which is useful for the petitioners should be ignored as pleaded by the respondent, we find that the aforesaid letter and report by the Executive Engineer and mechanic of OAIC do not help the respondents.

There is no reason for us to interfere with the findings of the State Commission which has perused all the documents, affidavits and evidence produced on record and held that there is manufacturing defect. Respondents/opposite parties had ample opportunity to file a Revision Petition seeking removal of these findings regarding manufacturing defect as decided by the State Commission, which they did not do. A clear inference can be drawn against opposite parties that they are admitting the manufacturing defect and have no grievance against the order of the State Commission''s finding that there is manufacturing defects. It is impossible for a poor farmer to endlessly litigate the agent and the manufacturer for so many years and is required to be well compensated. Further, loss of earnings, the mental agony of repayment of bank loan is a big load to the farmer who could not utilize the power tiller in his farm as per the demonstration given to him. The respondents are continuously litigating without any respite to the petitioners. In Abhay Kumar Panda v. M/s. Bajaj Auto Limited, Commission gave ample relief to the complainant and relying on the same and in the interest of justice, for the petitioner whose suffering started from the year 1990, it has been an endless battle till now, i. e. 2008, only because of the defective tiller, we pass the following order.

WE direct OAIC and the manufacturer to jointly and severally pay Rs. 1,15,000, the amount that the petitioners had to pay to the Bank along with Rs. 15,000 as cost. The amount that has already been received by the petitioner, i. e. Rs. 33,000 is to be adjusted and the balance amount be paid to the petitioners within four weeks from the date of this order or else it would attract interest @ 9% per annum from the date of this order till its payment. Thus, the Revision Petition is allowed after modification of the order of the State Commission. R. P. allowed.